Neil Krishan Aggarwal

International Journal of Law and Psychiatry, May-June 2019


Even though the Bush Administration opened the Guantánamo Bay detention facility in 2002 in response to the September 11, 2001 attacks in the United States, little remains known about how forensic mental health evaluations relate to the process of detainees who are charged before military commissions. This article discusses the laws governing Guantánamo’s military commissions system and mental health evaluations. Notably, the US government initially treated detainees as “unlawful enemy combatants” who were not protected under the US Constitution and the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment, allowing for the use of “enhanced interrogation techniques.” In subsequent legal documents, however, the US government has excluded evidence obtained through torture, as defined by the US Constitution and the United Nations Convention Against Torture. Using open-source document analysis, this article describes the reasons and outcomes of all forensic mental health evaluations from Guantánamo’s opening to 2018. Only thirty of 779 detainees (~3.85%) have ever had charges referred against them to the military commissions, and only nine detainees (~1.16%) have ever received forensic mental health evaluations pertaining to their case. Of these nine detainees, six have alleged mental torture while in US custody. This paper shows that leaders in the United States and Europe should consider whether counterterrorism policies that supersede traditional health and human rights complicate the ability of future governments to prosecute cases when successive leaders change laws, a pertinent consideration as North American and European states grapple with the return of foreign fighters.

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